Security Law Amendment Act Ruling

The ruling on the Security Law Amendment Act (SLAA) was delivered on 23rd February 2015 by the High court sitting in Nairobi. The five judges Isaac Lenaola, Mumbi Ngugi, Hedwig Ong'udi, Hillary Chemitei and Joseph Louis Onguto made the following declarations

464. In the premises we make, the following declarations and orders:

(a) Section 12 of the Security Laws (Amendment) Act and Section 66A of the Penal Code is hereby declared unconstitutional for violating the freedom of expression and the media guaranteed under Articles 33 and 34 of the Constitution.

(b) Section 64 of Security Laws (Amendment) Act which introduced Sections 30A and 30F to the Prevention of Terrorism Act is hereby declared unconstitutional for violating the freedom of expression and the media guaranteed under Articles 33 and 34 of the Constitution.

(c) Section 34 of the Security Laws (Amendment) Act is hereby declared unconstitutional in so far as it includes “telescopes” in Section 2 of the Firearms Act.

(d) Section 16 of the Security Laws (Amendment) Act and Section 42A of Criminal Procedure Code are hereby declared unconstitutional as they violate the right of an accused person to be informed in advance of the evidence the prosecution intends to rely on as provided under Article 50(2) (j) of the Constitution

(e) Section 20 of the Security Laws (Amendment) Act which amended Section 364A of the Criminal Procedure Code is hereby declared unconstitutional for being in conflict with the right to be released on bond or bail on reasonable conditions as provided for under Article 49(1) (h) of the Constitution.

(f) Section 26 of the Security Laws (Amendment) Act which introduced Section 26A into the Evidence Act is hereby declared unconstitutional for violating the right of an accused person to remain silent during proceedings as guaranteed under Article 50(2) (i) of the Constitution.

(g) Section 48 of the Security Laws (Amendment) Act which introduced Section 18A to the Refugee Act, 2006 is hereby declared unconstitutional for violating the principle of non-refoulment as recognized under the 1951 United Nations Convention on the Status of Refugees which is part of the laws of Kenya by dint of Article 2(5) and (6) of the Constitution.

(h) Section 95 of the Security Laws (Amendment) Act which introduced Section 95A to the National Police Service Act and created the National Police Service Board is hereby declared unconstitutional for violating Article 246(3) of the Constitution.

465. As for costs, it is a matter within the discretion of the Court. Given the nature of this petition which raises matters of great public interest and importance we order that each party bears its own costs.